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[2025] NSWCA 164
respondent. Appeal dismissed. The appellant is to pay the respondent's costs on the ordinary basis: [77].
The Court of Appeal upheld the family provision order for Arthur. Con's final will deliberately excluded him, but the family provision assessment required consideration of the broader circumstances, including Arthur's financial position, his former relationship with Con, the earlier succession plan, and Voula's relative position. The appeal court found that Voula's comparison of the parties' financial outcomes did not accurately account for how the orders operated, including the notional estate and costs. Because she did not show that the result was plainly unjust or affected by a reviewable error, the appeal was dismissed.
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2,387 words · generated 06/10/2026
Con Alexiou died in May 2019, aged 88. His wife had died in 2001, and his surviving children were Voula and Arthur. The central assets included shares in two companies, Alexicon and VLN, each associated with an industrial unit at Jamisontown. Under Con's 2008 will, the shares in VLN were to pass to Voula and the shares in Alexicon to Arthur, reflecting an intended division of valuable income-producing assets between them ([5], [7]).
2 cited instruments linked from this judgment.
Arthur's bankruptcy in 2012, following litigation about a failed business venture, marked a serious change in his relationship with Con. The primary judge found that Con was disappointed by Arthur's circumstances and concerned he might sell the property represented by the Alexicon shares. In wills made in 2013, Con instead provided for Arthur's sons, Costa and Jason, through those shares. Con's final will made no provision for Arthur himself and recorded his view that he had already provided for Arthur during his lifetime ([9]-[12]).
Arthur applied for family provision under s 59 of the Succession Act 2006 (NSW). The primary judge found that Arthur was eligible, had negligible net worth and had little prospect of substantial future income. The judge also found that Voula was comparatively well off, with much of her wealth derived from Con's assistance. The initial proposed legacy was $300,000 gross, subject to an agreed $129,435.58 allowance for Arthur's liability to Voula ([21]-[25]).
After the first reasons were published, the parties discovered that Voula had sold the VLN Unit for $2.62 million, more than the value used in the parties' agreed estimate of the estate. The proceeds were applied to tax and to personal purposes, including paying down the mortgage on Voula's Blakehurst home. The parties then agreed that the net distributable estate was $1,259,035.07 ([28]-[30]).
The primary judge reconsidered the orders and increased Arthur's gross legacy to $400,000, leaving a net legacy of $270,564.42 after the allowance. The orders also dealt with the parties' costs, Costa and Jason's costs and interests, and the designation of the Blakehurst Property as notional estate to the extent needed to meet specified orders ([31]-[39]).
Voula appealed the orders concerning Arthur's legacy and costs. The principal issue was whether, on the findings made and the orders' financial consequences, the provision for Arthur was an unreasonable or plainly unjust exercise of discretion. The Court of Appeal dismissed the appeal and ordered Voula to pay Arthur's appeal costs on the ordinary basis ([41], [74]-[77]).
The Court began with the statutory framework. As Con's child, Arthur was an eligible person under s 57(1)(c). Section 59(1)(c) required the Court to be satisfied that adequate provision for Arthur's proper maintenance, education or advancement in life had not been made. If satisfied, the Court could exercise the discretion in s 59(2), having regard to the matters in s 60. The inquiry is not resolved by the will alone; it is an evaluative judgment grounded in all relevant circumstances ([51]-[55]).
The Court emphasised that Arthur bore the burden of establishing a case for displacing Con's clearly stated testamentary wishes ([51]). But those wishes were part of the assessment, not an automatic answer to it. The statutory concept of “proper” provision requires attention to competing claims, their relative urgency, the family's circumstances and the size of the estate, drawing on the explanation quoted from McCosker v McCosker ([53]). Moral obligation can assist as a guide to statutory purpose, but it does not replace the statutory text ([54]).
On appeal, the question was not whether another judge might have made a different order. The primary judge's assessment was subject to House v The King review. The Court referred to the importance of restraint in appeals that seek a second evaluation, because the later evaluation may be no better and can increase the cost and reduce finality of litigation ([56]-[58]).
The Court considered the positive and negative findings together. Findings adverse to Arthur included Con's determined decision not to benefit him directly, Arthur's role in his financial difficulties, and the evidentiary difficulty in assessing his exact financial position. But the primary judge also found that Arthur and Con had previously enjoyed a close and loving relationship; Con had intended the family businesses to remain as income-producing assets within the family; and Con's decision to benefit Arthur's sons reflected an appreciation that Arthur retained an attenuated claim on his bounty ([65]-[67]).
The parties' relative financial circumstances were also material. The primary judge found that Voula was comparatively well off and had received substantial assistance from Con, whereas Arthur had negligible net worth and no practical prospect of earning a substantial income at age 62 ([67]). The Court considered these findings a readily comprehensible foundation for the provision order. It did not treat Con's expressed intention as immaterial, but concluded that the findings did not require the primary judge to refuse all provision ([65]-[67]).
Voula argued that the result was plainly unjust because the amounts paid from the estate left her with less than Arthur. The Court found that this comparison was not sufficiently grounded in the actual orders. Some liabilities could be paid from the Blakehurst Property as notional estate rather than from the net distributable estate; the VLN Unit sale proceeds had been applied in ways that complicated the parties' respective positions; and the value of Alexicon was uncertain ([69]-[73]). The Court therefore could not accept Voula's calculation as a reliable account of the final positions. Her failure to untangle these matters undermined the claim that the outcome was plainly unjust ([70], [74]).
The Court also distinguished an alleged failure to give reasons from an alleged error in the result. Voula no longer sought a remitter, but sought dismissal of Arthur's claim. In those circumstances, the Court conducted a real review of the trial and asked whether the orders should stand. A separate reasons complaint would not itself resolve that question ([44]-[47]).
The judgment presents the governing law as settled, rather than announcing a new test. Before this decision, the relevant statutory framework already required an eligible claimant to establish that adequate provision for proper maintenance, education or advancement in life had not been made. If that threshold were met, the Court had a broad discretion about whether to order provision and its nature, informed by s 60 ([51]-[55]).
The judgment restates that “proper” provision is assessed in all the circumstances, including competing claims and the testator's ability to meet them. It also reiterates the continuing usefulness of concepts such as moral obligation and duty, while making clear that they guide interpretation and application rather than replace the statutory language ([53]-[55]). It describes the task as multifaceted and evaluative, and notes that the standard reflects prevailing community standards of what is right and appropriate ([55]).
For appellate review, the decision applies the House v The King standard to the primary judge's overlapping conclusions under ss 59(1)(c) and 59(2). It warns against treating an appeal as an invitation to make a fresh assessment simply because another view is possible ([56]-[58]). The judgment also explains that a reasons complaint will usually not be a freestanding route to success if the appellant does not seek a rehearing. On an appeal by way of rehearing, the appellate court reviews the trial and determines whether the final orders should stand ([45]-[46]).
The decision's practical emphasis is that an appellant alleging a plainly unjust financial outcome needs to deal accurately with how all relevant orders operate. A comparison based only on headline amounts can be inadequate if some payments come from notional estate, if the estate's assets have changed, or if costs and company values remain uncertain ([69]-[74]). That is an application of the established evaluative and appellate principles to the unusual financial record in this case, not a newly stated statutory formula.
At [51], the Court states that Arthur had to establish an affirmative case to displace Con's clearly stated testamentary wishes. In plain English, a child does not obtain provision merely because they are a child; the claimant must prove the statutory basis for an order, and the will-maker's wishes remain an important consideration.
At [53], the Court quotes the explanation that “proper” provision must be considered in light of all the circumstances, including competing claims and the size of the estate. In plain English, adequacy is not decided by a fixed dollar amount or a single factor. The Court looks at the family's circumstances and the estate as a whole.
At [55], the judgment says the order should reflect “perceived prevailing community standards of what is right and appropriate”. In plain English, the statute calls for a contextual value judgment about appropriate provision, rather than a mechanical calculation. The judgment also describes the standard as imprecise, variable and contestable.
At [57], the Court refers to appellate restraint where a challenge would merely invite a different evaluation that may be no better than the first. In plain English, an appeal court does not redo the primary judge's assessment just because another result could be argued.
At [45], the Court explains that it would conduct a “real review of the trial”, regardless of whether the primary judge had failed to give reasons. In plain English, where the appellant seeks no remitter, the appeal court looks at whether the orders were correct, not just whether the reasons were expressed adequately.
At [64], the Court identifies Voula's complaint as a challenge to the conclusion drawn from the facts, not a claim that the fact-finding process itself miscarried. In plain English, the Court distinguished between disputing what facts were found and arguing that accepted facts did not justify the result.
At [74], the Court calls Voula's financial account “overly simplistic and unpersuasive”. In plain English, the figures presented did not sufficiently account for the different sources from which payments might be made, uncertain assets, and costs liabilities.
The decision is most relevant to NSW family provision disputes in which an eligible person seeks provision despite a will-maker's deliberate decision to exclude them. It illustrates that the testator's expressed wishes are important but must be assessed alongside the claimant's needs, the claimant's relationship with the deceased, the nature of any earlier succession plan, competing beneficiaries, and the deceased's lifetime assistance to family members ([51]-[55], [65]-[67]).
It is also relevant where the evidence includes mixed findings. Here, there were substantial facts adverse to Arthur, including estrangement and Con's firm intention to exclude him, alongside findings supporting a claim, including Arthur's limited financial means and the earlier close relationship. The Court assessed the findings cumulatively rather than treating the adverse facts as determinative ([65]-[67]).
The appellate aspect may be relevant where a party argues that a provision order is plainly unjust by comparing the outcome for the claimant with that for a beneficiary. The judgment shows the importance of connecting the proposed comparison to the actual orders, including whether payments are made from the deceased's estate or designated notional estate, whether asset values have changed, and how costs are allocated ([69]-[74]).
The reasoning on reasons complaints applies where an appellant does not seek a remitter and instead seeks a final order dismissing the claim. In that setting, a complaint that the primary judge did not adequately explain the amount may have no separate utility if the appeal court can review the record and determine whether the order should stand ([44]-[47]).
The decision also discusses a distinct fact-finding situation. Authorities about a trial judge's obligation to engage with competing evidence may assist where a party alleges that material competing evidence was not analysed or resolved. They did not assist Voula, because she did not challenge the factual findings and instead challenged the evaluative result ([62]-[65]).
The judgment itself does not discuss any later treatment of Alexiou v Alexiou, which was decided on 25 July 2025. No post-judgment authorities are identified in the supplied judgment text, so later judicial treatment cannot be described from this source.
The decision does explain its own treatment of earlier authorities. It applies House v The King to appellate review; applies Transport for NSW v Hunt Leather Pty Ltd to the utility of reasons complaints without a remitter; and considers or cites authorities on the family provision framework and on fact-finding obligations ([45], [51]-[57], [62]). Those are the relationships stated in this judgment. The reasons do not establish whether later courts have followed, distinguished, or otherwise treated Alexiou.
The judgment does not decide the precise value of the Alexicon shares or the ultimate net financial position of each family member after all the orders and distributions. It records that Alexicon's value might have been no more than its bank balance, while other valuation assumptions were also discussed; the financial consequences remained unclear ([20], [38]-[40], [73]).
The appeal was confined to specified orders concerning Arthur's legacy, costs and the burden of those amounts. Voula did not challenge the remaining orders dealing with her costs or the amounts associated with Costa and Jason. The Court therefore did not undertake a general review of every part of the primary judge's orders ([41]-[43]).
The Court did not set a numerical threshold for what makes an order “modest”, or establish a formula for comparing a claimant's legacy with a beneficiary's ultimate position. Its conclusion was tied to the findings and the inadequacy of Voula's particular calculations ([66]-[74]).
Nor did the Court decide a general rule about when a testator's decision to benefit a claimant's children, rather than the claimant, will satisfy or fail the statutory test. It treated Con's decision as one relevant circumstance: it showed that he had considered Arthur's circumstances and regarded him as having an attenuated claim, but did not itself determine the outcome ([66]).
Finally, the judgment notes that costs can complicate family provision assessments, especially when later compromise offers affect costs orders. It does not provide a universal method for calculating or excluding costs from the comparison of parties' positions; it treats that issue as dependent on the circumstances and the Court's discretion ([71]-[72]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Alexiou v Alexiou [2025] NSWCA 164
Hearing dates: 26 June 2025
Date of orders: 25 July 2025
Decision date: 25 July 2025
Before: Payne JA at [1]
Stern JA at [2]
Free JA at [3]
Decision: (1) Appeal dismissed.
(2) The appellant is to pay the respondent’s costs.
Catchwords: SUCCESSION – Family provision claim – No provision made for respondent in father’s will due to estrangement – Whether primary judge erred in granting provision to the respondent – Significance of comparison to provision made for sibling – Whether provision unreasonable and plainly unjust – Where appellant cites failure to give reasons but does not seek remittal – Where litigation costs have severely eroded estate
Legislation Cited: Succession Act 2006 (NSW), s 57, 59, 60, 63
Cases Cited: Alexiou v Alexiou [2020] NSWSC 748
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Angius v Angius [2025] NSWCA 113
Bassett v Bassett [2021] NSWCA 320
Bradley v Matloob (2015) 72 MVR 194; [2015] NSWCA 239
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Curtis v Curtis [2024] NSWCA 136
Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62
Frank v Angell [2024] NSWCA 264
Golosky v Golosky [1993] NSWCA 111
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lalic v Lalic [2022] NSWSC 31
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Transport for NSW v Hunt Leather Pty Ltd (2024) 115 NSWLR 489; [2024] NSWCA 227
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Category: Principal judgment
Parties: Voula Alexiou (Appellant)
Arthur Alexiou (Respondent)
Representation: Counsel:
L Ellison SC / A Petrie / M Malaney (Appellant)
D Allen (Respondent)
Solicitors:
Urania Zafiris Solicitors (Appellant)
McEvoy Legal (Respondent)
File Number(s): 2025/2803
[This headnote is not to be read as part of the judgment]
This appeal concerns an order for family provision under the Succession Act 2006 (NSW) (Succession Act), arising from the death of Con Alexiou (the Deceased). The Deceased was survived by his two children, Voula Alexiou (the appellant) and Arthur Alexiou (the respondent).
The Deceased made three wills after the death of his wife. The will he made in 2008 in substance divided his valuable estate assets equally between the appellant and respondent. The main assets were the shares in two companies, Alexicon and VLN. Each of those companies owned an industrial unit on land in Jamisontown. Under the 2008 will the shares in Alexicon were to pass to the respondent and the shares in VLN were to pass to the appellant. Subsequently, the respondent became embroiled in a failed business venture, resulting in complex litigation and bankruptcy. This led to a significant rupture in the relationship between the Deceased and the respondent from 2012.
The Deceased executed two further wills in 2013. In his final will he made no provision for the respondent. Instead, the Deceased gifted the shares in Alexicon to the respondent’s sons, Costa and Jason Alexiou. The appellant is the sole executrix and trustee of the Deceased’s estate.
The respondent applied for a family provision order. The primary judge found that the Deceased had been determined not to make provision for the respondent. The primary judge also found that there had been a close and loving relationship between the respondent and the Deceased before the rupture in their relationship, that the respondent had negligible net worth and a lack of future prospects and that the applicant’s comparative wealth derived in considerable measure from assistance given to her by the Deceased. The primary judge initially determined that provision should be made from the Deceased’s estate in the amount of $300,000, subject to an allowance of $129,435.58 to satisfy amounts due to the appellant. This legacy was to be paid out of a net distributable estate with an agreed estimated value of $922,664. Reasons were published to that effect in October 2024, but orders were not made at that time pending further submissions.
After the publication of those reasons it became apparent that the appellant had sold the industrial unit owned by VLN, for a price which was substantially higher than the estimated value that the parties had relied upon in agreeing the net distributable estate. Further submissions and evidence were received, and the parties agreed that the net distributable estate was in fact $1,259,035.07. The evidence disclosed that the appellant had applied substantial parts of the proceeds of sale to her personal benefit, including to pay down mortgage debt on her home at Blakehurst (Blakehurst Property). The primary judge increased the family provision for the respondent to $400,000 (subject to the same deduction) and made a number of other orders including substantial costs orders in favour of the respondent, Costa and Jason. The primary judge also designated the Blakehurst Property to be notional estate to the extent necessary for the appellant to pay the amounts required under the Court’s orders.
The decisive issue of substance that arose on appeal was whether the primary judge erred in making provision for the respondent, having regard in particular to comparison with the financial position of the appellant. The appellant also complained that the primary judge failed to give adequate reasons for ordering family provision in the gross amounts of $300,000 and subsequently $400,000.
The Court (Free JA, Payne and Stern JJA agreeing), dismissing the appeal, held:
Bassett v Bassett [2021] NSWCA 320, McCosker v McCosker (1957) 97 CLR 566, Vigolo v Bostin (2005) 221 CLR 191, Andrew v Andrew (2012) 81 NSWLR 656, Angius v Angius [2025] NSWCA, Singer v Berghouse (1994) 181 CLR 201, Golosky v Golosky [1993] NSWCA 111, considered.
Chapple v Wilcox (2014) 87 NSWLR 646, Durham v Durham (2011) 80 NSWLR 335, Frank v Angell [2024] NSWCA 264, cited.
House v The King (1936) 55 CLR 499, applied.
House v The King (1936) 55 CLR 499, Curtis v Curtis [2024] NSWCA 136, Mitchell v Cullingral Pty Ltd [2012] NSWCA 389, Bradley v Matloob (2015) 72 MVR 194, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, considered.
Transport for NSW v Hunt Leather Pty Ltd (2024) 115 NSWLR 489, applied.
PAYNE JA: I agree with Free JA.
STERN JA: I agree with Free JA.
FREE JA: This appeal concerns an application for family provision under the Succession Act 2006 (NSW) (Succession Act), arising from the death of Con Alexiou.
Con Alexiou died on 11 May 2019 at the age of 88. His wife of over 40 years, Sofia, died in 2001. Con was survived by his two children, Voula Alexiou and Arthur Alexiou. Voula was born in 1959 and Arthur in 1962. Arthur and his wife Maria have two children, Costa Alexiou (b. 2003) and Jason Alexiou (b. 2005). As is conventional in matters of this kind, and without intending any disrespect to the parties involved, I will refer to these members of the Alexiou family by their first names. There are other members of the family, but these are the key individuals for the purposes of examining the issues requiring determination.
In order to understand the disputes that have arisen, it is necessary to explain the treatment of certain assets acquired by Con and held at the time of his death. By 1999, Con (or companies under his control) had come to own a block of land in Batt Avenue, Jamisontown, a suburb of Penrith. In around 1999, two industrial units were constructed on that land. In January 2013, the land was subdivided by registration of a strata plan, resulting in the creation of two lots, each featuring one of the units. In 2014, Lot 1 was transferred to a company called Alexicon Pty Ltd (Alexicon) and Lot 2 was transferred to a company called VLN Pty Ltd (VLN). Con owned the shares in both Alexicon and VLN. Subject to certain mortgages, Alexicon and VLN retained ownership of Lot 1 and Lot 2 respectively at the time of Con’s death, and Con retained ownership of the shares. The unit located on the Alexicon land is known as “Unit 1”. For ease of reference, I will refer to the unit located on the VLN land as the “VLN Unit”.
In or around 2005, Con came to hold a property at 44 East Street, Blakehurst (Blakehurst Property) as a joint tenant with Voula. Con assisted Voula with the purchase of the Blakehurst Property. Before his death Con lived at the Blakehurst Property with Voula and her family. At the time of Con’s death, the Blakehurst Property had an estimated value of $1.3 million. By the time of trial (which commenced in 2022), the value of the Blakehurst Property was said to have risen to between $1.75 million and $2.1 million, and the property was subject to a mortgage debt of $815,000.
Con made three wills following the death of Sofia. In April 2008, he executed a will (2008 Will) which, in substance, divided his estate assets equally between Voula and Arthur. The 2008 Will was made in anticipation of the subdivision of the land in Jamisontown. Assuming the subdivision proceeded as planned, the 2008 Will provided for the shares in VLN to be given to Voula and the shares in Alexicon to be given to Arthur. The residuary estate (which does not appear to have been of any substantial value at the time) was given to Voula. Voula was also appointed executrix and trustee of the will.
The 2008 Will also purported to gift Con’s interest in the Blakehurst Property to Voula. As explained below, that remained a feature of each of the wills subsequently made by Con. In each case, the purported gift was unnecessary and ineffective. By virtue of Voula’s right of survivorship under the joint tenancy, if Con predeceased her Voula was bound to become the sole owner of the Blakehurst Property. This is what transpired upon Con’s death in 2019 and Voula has since been registered on title as the owner of the property.
There was a significant rupture in the relationship between Con and Arthur from around 2012. After becoming embroiled in costly litigation about a failed business venture, Arthur was declared bankrupt on 23 November 2012. His wife, Maria, became bankrupt on 26 November 2012. In each case the bankruptcy endured for three years. According to the factual findings of the primary judge, none of which were challenged on appeal, Con was upset with Arthur for becoming bankrupt and Con regarded the circumstances in which he became bankrupt as bearing adversely upon Arthur’s worthiness as a recipient of testamentary gifts. The primary judge found that Con was motivated, in his testamentary decisions, by disappointment that Arthur had allowed himself to fall into complex litigation and bankruptcy. His Honour found that had the bankruptcy and subsequent estrangement between Con and Arthur not occurred, Arthur could reasonably have expected to receive Alexicon by way of testamentary gift on terms broadly equivalent to any gift to Voula of VLN.
Con executed a further will on 21 January 2013 (January 2013 Will). As with the 2008 Will, the January 2013 Will appointed Voula as executrix and trustee of the will and purported to gift her Con’s interest in the Blakehurst Property. Also consistently with the 2008 Will, the shares in VLN were to be given to Voula. The significant change was in relation to Alexicon. Under the January 2013 Will the shares in Alexicon were to be given not to Arthur but to his sons, Costa and Jason, upon their attaining the age of 23 years. Arthur was to be given $60,000, with an explanatory declaration by Con as testator stating, “I have sufficiently provided for my son during my lifetime”. The residuary estate was again to go to Voula.
On 3 April 2013, Con executed his final will (). In terms of dispositions to Voula, Costa and Jason it was relevantly to the same effect as the January 2013 Will. There was no longer any provision made for Arthur. Clause 2 of the Final Will included an explanation of why Con had taken this approach:
“I have made no provision in this Will for my son, Arthur Alexiou as I have previously provided for him in my lifetime. In particular:
(a) on or about 1999 I paid Arthur’s overdraft with Citibank in the sum of $118,000 that was secured over my property at 25 High Street, Bankstown;
(b) further sums of $20,000 and $20,000 to assist with Arthur’s purchase and subsequent renovation of his then home at 18 Glenmore Place, Penrith;
(b) on or about 2005/6 I gave to after the sum of $40,000 which was money borrowed from National Australia Bank and secured over my and my daughter’s property at […] East Street, Blakehurst;
(c) various sums in 2009, 2010, 2011 and 2012, of $8,000, $11,000, $20,000.”
Con’s longtime solicitor, Mr Peter Skouteris, prepared the Final Will, as he had the 2008 Will and the January 2013 Will. The primary judge accepted the evidence of Mr Skouteris about the circumstances surrounding the preparation and execution of the Final Will, including that Con wanted “nothing to go to Arthur”.
After Arthur was discharged from bankruptcy (in November 2015), he sought to persuade Con to change his will by reverting to the 2008 model, so as to provide for the shares in Alexicon to pass to Arthur rather than his sons. Con refused this request. This was apparently because Con feared that if Arthur acquired control of Alexicon he would sell Unit 1, rather than retain that asset within the family as Con wished.
In the period after 2013, Unit 1 was encumbered by two mortgages. As of 7 February 2020, according to Voula’s estimate at that time, the liabilities of Alexicon included debts of approximately $760,000. This included a mortgage granted to ING Bank in 2014 to secure a loan of $600,000. As of February 2020, the value of Unit 1 was estimated to be $1,540,000. That was also the estimated value of the VLN Unit, which was unencumbered.
Probate of the Final Will was granted to Voula as sole executrix on 31 January 2020.
Arthur brought the proceedings below, initially by summons filed on 12 December 2019, seeking an order under s 59 of the Succession Act that provision be made for his maintenance, education and advancement out of the deceased estate of Con. Voula was the first defendant in those proceedings, and Costa and Jason were the second and third defendants, respectively. Each took an active role in the proceedings.
At the core of Arthur’s case at trial was a complaint that his expectations of an inheritance equal to that of his sister, in the form of a gift of ownership of Alexicon in circumstances where Voula would acquire VLN, had been defeated by the Final Will. An additional matter of complaint was the way in which the affairs of Alexicon and VLN had been managed since 2013. Arthur contended that the way in which those affairs had been managed had undermined the value of Alexicon, and favoured VLN and Voula in a way that was inconsistent with an expectation of equal treatment of the two children of Con (or the two branches of the family through those children).
In connection with this complaint, in addition to his family provision claim Arthur initially sought to impugn certain transactions undertaken or involving Voula (including in her capacity as a director of Alexicon and VLN, and pursuant to an enduring power of attorney granted by Con) between 2013 and 2019 affecting Alexicon and the Blakehurst Property. Arthur alleged that Voula had acted contrary to fiduciary obligations that she owed. On that basis Arthur sought equitable compensation from Voula or an allowance against her in the administration of Con’s estate. Those claims were ultimately abandoned by Arthur. As explained below, however, the notion that such claims on behalf of Arthur, Costa and/or Jason remained potentially extant assumed some significance in the primary judge’s assessment of the family provision application and the final disposition of the proceedings. That was, at least in part, because Arthur continued to argue that, notwithstanding the abandonment of his claims for equitable compensation, in assessing his claim for family provision the Court should make an allowance in his favour (and against Voula) on the basis that Voula had during Con’s lifetime received substantial benefits which undermined the value of assets that were earmarked as Arthur’s inheritance.
The status of the Alexicon assets changed further during the course of the proceedings below. In 2020, Voula (in her capacity as executrix of the estate) sold Unit 1 in order to discharge the mortgage over that property and to provide funds for the estate to defend the proceedings that had been commenced by Arthur. Costa and Jason (through Arthur as their tutor) sought an injunction to prevent this sale from occurring and to replace Voula with Maria as trustee of the testamentary trust that was said to have arisen in respect of the Alexicon shares. Although a temporary injunction was obtained restraining the sale, on 17 June 2020, White J refused to extend that injunction and summarily dismissed the proceedings brought by Costa and Jason: [2020] NSWSC 748.
(1) ORDER that the plaintiff receive a legacy of $400,000 payable out of the estate or notional estate of the deceased conditional upon him allowing in favour of the first defendant the sum of $129,435.58 in full satisfaction of any liability he may have for costs orders hitherto made against him in her favour.
(2) ORDER that the plaintiff’s costs of the proceedings, assessed at $300,000, be paid out of the estate or notional estate of the deceased.
(3) ORDER that the first defendant’s costs of the proceedings, in the amount of $272,000 (in addition to the sum of $380,000 hitherto paid), be paid out of the notional estate of the deceased.
(4) ORDER the second and third defendants’ costs of the proceedings, assessed at $155,000, be paid out of the estate or notional estate of the deceased.
(5) ORDER that the burden of the legacy for which orders 1, 2, 3 and 4 provide and the costs for which orders 2, 3 and 4 provide be borne by the first defendant as residuary beneficiary of the deceased.
(6) ORDER pursuant to section 66 of the Succession Act 2006 NSW that:
(a) one of the two shares in Alexicon Pty Ltd (ACN 078 050 898) vest in the Second Defendant,
(b) the other share vest in the Third Defendant,
absolutely upon the making of these orders.
(7) NOTE that for the purpose of these proceedings and for the purpose of bringing to an end all disputation between the first defendant (on the one hand) and the second and third defendants (on the other hand) it is agreed between the defendants that the amount to be borne by the first defendant in favour of the second and third defendants for funds of Alexicon Pty Ltd applied by VLN Holdings Pty Ltd (under the control of the first defendant) and the first defendant for her own use in administration of the estate of the deceased is $150,000.
(8) NOTE that upon the first defendant submitting to an order that the sum of $150,000 be paid to the second and third defendants out of the notional estate of the deceased the second and third defendants (by their counsel) give to the Court an undertaking that they will not require the first defendant to file and pass, or to verify file and pass accounts in relation to the estate of the deceased.
(9) UPON that undertaking to the Court, ORDER that the sum of $150,000 be paid to the second and third defendants out of the notional estate of the deceased.
(10) DECLARE that the land comprised in folio identifier xxx and known as xxx Street, Blakehurst NSW 2221 is designated as notional estate to the extent required to pay the amounts payable in the above orders.
(11) ORDER that the Freezing Order made on 25 October 2024 and extended on 8 November 2024 be varied to permit the first defendant, though her current solicitor (Mr Andrew Fleming of Walker & White):
(a) to distribute funds in the current solicitors trust account in accordance with the above orders,
(b) to sell or encumber xxx Street, Blakehurst NSW for the purpose of paying the amounts payable pursuant to the above orders, so long as the net proceeds are paid to the first defendant’s current solicitor’s trust account in the first instance.
(12) RESERVE to all parties (and to Mr Andrew Fleming of Walker & White) liberty to apply for further orders or directions in the working out of these orders.
(13) ORDER that these orders be entered forthwith.
Several aspects of these orders require elucidation.
In terms of the order for family provision (order 1), the increase to a gross figure of $400,000 meant that the net provision to Arthur increased to $270,564.42.
A number of the orders operate by reference to the assets of the “notional estate”. Thus, for example, the legacy by way of family provision in favour of Arthur in order 1 is payable “out of the estate or notional estate of the deceased”. Order 3 provides that the payment of Voula’s costs of the proceedings is to be paid “out of the notional estate of the deceased”. The identity of the notional estate is revealed by order 10. By that order the Court declared that the Blakehurst Property was designated as notional estate “to the extent required to pay the amounts payable in the above orders”.
This treatment of the Blakehurst Property appears to have arisen only because of the matters concerning the sale of the VLN Unit which were revealed after the primary judge had published the October Reasons. In his summons and original statement of claim Arthur had sought orders for the designation of notional estate, but he subsequently abandoned those claims. Consistent with that approach, the orders initially proposed in the October Reasons did not involve any designation of property as notional estate property. However, as explained above, after the sale of the VLN Unit, Voula applied the proceeds of sale to a variety of personal ends, including the discharge of part of an existing debt secured by a mortgage over the Blakehurst Property. This involved the application of money that was part of Con’s estate to the personal benefit of Voula, in her capacity as the sole owner of the Blakehurst Property. Although the issue is not addressed in the additional reasons of the primary judge given on 11 December 2024, it is apparent that his Honour proceeded on the basis that the circumstances warranted designation of the Blakehurst Property as notional estate. By this mechanism, the pool of assets to satisfy discharge of the Court’s final orders was expanded to include the Blakehurst Property: see s 63(5) of the Succession Act. In her appeal, Voula makes no complaint about this aspect of the orders.
Pursuant to order 3, Voula is nominally entitled to be paid $272,000 for her costs of the proceedings. However, that amount is to be paid out of the notional estate of Con, which is the Blakehurst Property already owned by Voula. As noted in order 3, this order was made in circumstances where $380,000 had already been applied from Con’s estate to pay the costs of Voula in the proceedings.
An additional part of the context for understanding the final orders is explained by the chapeau to those orders which appears in the reasons for judgment at [173]. There the primary judge explains that the orders were made “on the understanding that they are made for the purpose of bringing to an end all questions in dispute between the parties”. It is apparent from the context that his Honour’s conception of the dispute between the parties included the possibility of at least Costa and/or Jason seeking to recover from Voula some amount in respect of alleged misapplication of the funds of Alexicon by Voula (including through VLN). The note recorded in paragraph 7 of the orders describes an agreement whereby Voula would bear an amount of $150,000 in favour of Costa and Jason relating to funds of Alexicon applied by VLN and by Voula for her own use. Paragraphs 8 and 9 have the effect that upon an undertaking being given to the Court by Costa and Jason that they will not require Voula to file and pass, or to verify file and pass, accounts in relation to the estate of Con, Voula would be subject to an order that she pay Costa and John $150,000 out of Con’s notional estate.
Voula’s appeal is confined to an appeal from the decision below in relation to orders 1 and 2, and order 5 (but only in so far as it relates to orders 1 and 2). That is, Voula seeks to challenge the conclusion of the primary judge that Arthur is entitled to receive family provision in the form of a net distribution of $270,564.42 (order 1) and a payment of $300,000 in respect of his costs (order 2), in each case from the estate or notional estate of Con and with the burden to be borne by Voula. Voula does not seek to disturb the balance of his Honour’s orders dealing with her own entitlement to costs and with the distributions and payments due to Costa and Jason.
Consistently with this approach, Voula did not join Costa and Jason as parties to the appeal. No issue was raised by Arthur about the appropriateness of that approach.
At the hearing of the appeal, Voula was granted leave to rely upon an amended notice of appeal. The amended grounds of appeal are as follows:
1 His Honour erred in finding the provision (being no provision) made for the appellant respondent out of the estate of the deceased was not proper and adequate.
2 His Honour erred in making provision for the respondent.
3 In making provision for the respondent in circumstances where:
(a) the (agreed) value of the net distributable estate was $1,259,035 [J165];
(b) the trial judge found the respondent was estranged from the deceased [J50];
(c) the deceased made provision for the respondent's children rather than for the respondent [J49];
(d) the respondent invited the deceased to make provision for his sons in lieu of himself to protect his putative inheritance from creditors [J49];
(e) the deceased had positively turned his mind to whether he would make provision for the respondent and chose not to [J48, J49, J113];
(f) the respondent was found not to be an "entirely credible witness" [J7];
(g) the respondent had managed his affairs so as to appear without financial means or security [J7]; and
(h) the Court was unable beyond "a very broad brush" approach to determine the respondent's worth [J105-107],
His Honour erred in the exercise of his discretion in a way not readily apparent in the circumstances.
4 Where:
(a) the net agreed distributable estate was $1,259,035; and
(b) the provision made for the respondent of $400,000 was reduced by a Costs Order of $129,435; and
(c) the respondent's costs of $300,000; and
(d) the second and third defendants costs of $155,000; and
(e) the appellant's costs of $272,000;
were to be paid from the net distributable estate, such that the net distributable estate was reduced by $998,000 so that the benefit received by the appellant out of the estate of the deceased was $261,035 $261,470, such amount being less than the provision made for the respondent and which bears no relationship to the facts found by the trial judge, the discretion of the trial judge has miscarried in some way not readily apparent.
being less than the provision made for the respondent and vhich (sic) bears no relationship to the facts found by the trial judge, the discretion of the trial judge has miscarried in some way not readily apparent.
5 His Honour gave no reasons for arriving at the sum of $300,000 [J114] and subsequently $400,000 [J168] as being the proper provision for the respondent.
Voula also changed course in terms of the relief that she sought, in the event that orders 1, 2 and 5 (to the extent that it relates to orders 1 and 2) of the primary judge are set aside. In her notice of appeal, Voula had sought an order remitting the matter for rehearing. By the amended notice of appeal, Voula abandoned that prayer for relief and instead sought an order that Arthur’s family provision claim be dismissed.
That change in approach has significance for the disposition of ground 5, and it is convenient to deal with that ground immediately. At the hearing of the appeal, senior counsel for Voula properly acknowledged that the principles considered in Transport for NSW v Hunt Leather Pty Ltd (2024) 115 NSWLR 489; [2024] NSWCA 227 at [107]-[108] presented an obstacle to success on ground 5. In circumstances where an appellant is not seeking a remittal of the matter for rehearing before the primary judge, there is usually no utility in a complaint about the adequacy or otherwise of the reasons provided by the judge. This is because of the nature of an appeal by way of rehearing. As the Court explained in Transport for NSW v Hunt Leather Pty Ltd at [107], irrespective of whether or not the primary judge failed to give reasons, this Court on appeal will conduct a real review of the trial. As a result “[e]ven if there was a failure to give reasons, if the plaintiffs were correctly found to be entitled to judgment, the appeal will be dismissed, and if they were not entitled to judgment, the appeal will be allowed.”
In the circumstances of this appeal there is no utility in separately examining Voula’s complaint about alleged inadequacies in the reasoning of the primary judge. The real burden of the appeal was for Voula to demonstrate error in the conclusions of the primary judge that Arthur was entitled to a family provision order and a favourable costs order. In support of that argument Voula calls in aid the lack of reasoning by the primary judge to justify the conclusion reached, the point being that the lack of such reasoning exposes the injustice of the result.
Voula did not seek to demonstrate that order 2, awarding costs in favour of Arthur from the estate or notional estate of Con, was affected by any independent error. The challenge to order 2 instead stands or falls with the challenge to order 1. The same can be said of order 5, in circumstances where Voula did not advance any argument that if there was no error in the orders for family provision and costs, there was nevertheless an independent error in the determination that the burden of such entitlements should fall on Voula. As such, the determinative question on appeal is whether the primary judge erred, in the ways alleged by Voula, in determining that Arthur was entitled to a family provision order, in the amount of $400,000 (subject to a recognised offset of $129,435).
Ground 1, as originally drafted, contended that the primary judge “erred in finding the provision (being no provision) made for [Voula] out of the estate of the deceased was proper and adequate”. As formulated, that ground of appeal was misdirected. The primary judge did not make a finding that no provision was made for Voula out of Con’s estate, and it follows that the primary judge did not find that an absence of provision for Voula was proper and adequate. Nor, as a matter of general principle, did Arthur’s application for a family provision order call for a determination, at least in terms, of whether there was provision for Voula that was proper and adequate. That is not to say, of course, that the financial position of Voula as an intended recipient of testamentary gifts was irrelevant to the application. A key part of Voula’s case, addressed below, is that the primary judge ignored, or gave insufficient weight to, Voula’s position relative to Arthur’s.
The principles which govern the determination of an application for a family provision order under the Succession Act, and the principles which apply in circumstances where there is an appeal from such a determination, are settled. They were not the subject of any material dispute in the submissions of the parties.
Arthur, as a child of Con, was an eligible person pursuant to s 57(1)(c), Succession Act. It was for Arthur, as the applicant for a family provision order, to establish an affirmative case for displacement by the Court of the testator’s clearly stated testamentary wishes: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [103] per Barrett JA (Gleeson JA agreeing).
Pursuant to s 59(1)(c), the Court was empowered to make a family provision order in relation to Con’s estate if satisfied that, at the time the Court was considering the application, “adequate provision for the proper maintenance, education or advancement in life” of Arthur had not been made by the Final Will or by the operation of the intestacy rules, or both.
Satisfaction in this regard is jurisdictional, in the sense that it is a prerequisite to the Court exercising its discretionary power to make an order for provision pursuant to s 59(2): Bassett v Bassett [2021] NSWCA 320 at [79]. The word “proper” in s 59(1)(c) is of considerable importance. In Bassett v Bassett at [82], the Court quoted the explanation of this word given by Dixon CJ and Williams J in McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 at 571-572:
It means ’proper’ in all the circumstances of the case, so that the question whether [an eligible person] has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.
In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text.
Where satisfied of the applicable matters in s 59, the Court “may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”: s 59(2). Pursuant to s 60(1), in determining whether to make a family provision order and the nature of any such order, the Court may have regard to the matters set out in s 60(2). This is a broad discretion and pursuant to s 60, the Court is entitled to consider a broad range of matters: Bassett v Bassett at [80]-[81]. The appropriate order should be made by reference to “perceived prevailing community standards of what is right and appropriate”: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 (Andrew v Andrew) at [16], cited with approval in Angius v Angius [2025] NSWCA 113 (Angius v Angius) at [24] per Mitchelmore JA (Bell CJ and Ball JA agreeing). Justice Mitchelmore in the same passage also cited with approval the description given in Andrew v Andrew of the standard in s 59(2) as “imprecise, variable and contestable”. An exercise of the Court’s power to make a family provision order calls for a “multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application”: Lalic v Lalic [2022] NSWSC 31 at [51] per Henry J, cited with approval in Angius v Angius at [25].
There is a considerable degree of overlap between the formation by a Court of the requisite state of satisfaction under s 59(1)(c) and the determination under s 59(2) of whether or not to make an order for family provision and, if so, in what amount. In each case, in the event of an appeal, the determination of the primary judge is subject to appellate review on the House v The King standard: Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 212; Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62 at [82] (per Tobias JA, Campbell and Young JJA agreeing); Frank v Angell [2024] NSWCA 264 at [107]-[108] (per Stern JA, Bell CJ and Gleeson JA agreeing).
In Singer v Berghouse at 212 Mason CJ, Deane and McHugh JJ quoted with approval the following passage from the judgment of Kirby P in Golosky v Golosky [1993] NSWCA 111 at 8:
Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.
Voula does not challenge any of the findings of fact made by the primary judge, which she acknowledges were referable for practical purposes to the statutory criteria in s 60. Voula’s complaint is what the primary judge made of the factual circumstances as established by the evidence.
Voula contends that in circumstances where the primary judge made a series of findings that were apparently adverse to Arthur’s claim, and the outcome would leave Voula with comparatively little provision from the estate, there is no reasonable basis that can be discerned from the reasons of the primary judge for making an order for a family provision order in Arthur’s favour. This characterisation is the foundation for Voula’s argument that the primary judge failed to provide reasons for the ultimate conclusion. However, for the reasons that I have set out above, given the nature of this rehearing, that is a distraction from the real question, which is whether his Honour erred in reaching the conclusions that he did.
In seeking to formulate these arguments in House v The King terms, Voula advanced two possibilities. One is that the outcome was unreasonable and plainly unjust, and the primary judge must be taken to have erred in the exercise of his discretion, albeit the precise nature of the error is not readily apparent. This invokes the following part of the reasoning of Dixon, Evatt and McTiernan JJ in House v The King:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried.
It may be accepted that where a trial judge fails to discharge the obligations referred to in these authorities, a House v The King error in the form of a failure to take into account a material consideration may be established. However, these principles are of little assistance to Voula in the present appeal, given that she makes no complaint about any of the fact finding undertaken by the primary judge. The value of the net distributable estate was a matter of agreement and his Honour was plainly aware of the amounts being ordered to be distributed from the estate and the notional estate. Voula argues that the primary judge paid insufficient attention to the net position of Voula, relative to Arthur, under the proposed orders. However, given the analysis undertaken by the primary judge, a complaint of this kind does not reveal a failure to analyse and resolve competing evidence as part of the process of fact finding.
To return to a point I have already emphasised, Voula’s complaint is not that the process of fact finding miscarried, but rather that given the facts which his Honour found, there was no proper basis to reach the conclusion that Arthur was entitled to an order for family provision in the amount determined by his Honour. That is not to allege error of the kind with which Leeming JA was concerned in Curtis v Curtis at [89]-[92]. Voula’s argument in substance reduces to the first proposition advanced by Voula in writing, namely that the determination was unreasonable and plainly unjust, and the primary judge must be taken to have erred in the exercise of his evaluative task and/or discretion, albeit the precise nature of the error is not readily apparent.
Voula’s arguments in this regard overlook important aspects of the primary judgment. It is not correct to say, as Voula did in her written submissions on appeal, that “[n]othing favourable to [Arthur] emerges from the facts”. Nor can it be said that all of the findings reached by his Honour pointed inexorably to the conclusion that Arthur had failed to establish that adequate provision for his proper maintenance, education or advancement in life had not been made and that the Court should not make an order for provision in his favour. There is no doubt that the Court made findings that were relevantly adverse to Arthur, including as to the strength of Con’s conviction that Arthur should not be the direct recipient of any benefits under the Final Will. Voula draws attention to these findings in ground 3 of her appeal. However, the Court also made a series of findings that were, in context, favourable to Arthur and provided a readily comprehensible foundation for the orders ultimately made.
His Honour found that prior to the rupture in their arrangement, Con and Arthur had enjoyed a close and loving relationship. After the rupture in their relationship, Con adapted his testamentary plans in a way that would see the Alexicon share of his estate go to Arthur’s branch of the family, but to Costa and Jason, by-passing Arthur. That was in circumstances where Con’s wish was for the assets of Alexicon and VLN to remain within the family as income producing assets, and there was a particular concern that Arthur would sell Alexicon’s Unit 1. Con’s decision to substitute a gift to Arthur’s sons for the gift formerly planned for Arthur demonstrated an appreciation by Con that Arthur “had a claim (albeit an attenuated claim) on his bounty and he had a moral obligation (albeit a reduced obligation) to consider [Arthur’s] personal circumstances at the time he made his will and looking forward”.
Arthur submitted in writing that if Voula’s appeal is dismissed, the Court should order that Arthur’s costs of the appeal be paid on an indemnity basis. Beyond asserting that position, Arthur did not explain why this would be an appropriate costs order in those circumstances. Nor was the point developed orally.
While I would dismiss the appeal, I do not consider that the circumstances of the appeal warrant any special costs order. The appropriate order is that Voula is to pay Arthur’s costs of the appeal, on the ordinary basis.
I would make the following orders:
Appeal dismissed.
The appellant is to pay the respondent’s costs.
**********
Alexiou
Alexiou [2025] NSWCA 164
(2012) 81 NSWLR 656
(2015) 72 MVR 194
(2014) 87 NSWLR 646
(2011) 80 NSWLR 335
(1936) 55 CLR 499
(1957) 97 CLR 566
(1994) 181 CLR 201
(2024) 115 NSWLR 489
(2005) 221 CLR 191
Appeal dismissed. The appellant is to pay the respondent's costs on the ordinary basis: [77].
There is some uncertainty about the value of Alexicon subsequent to this sale, and the corresponding value of the gifts of the shares in Alexicon due to Costa and Jason under the Final Will. Unit 1 was sold in 2020 for $1,500,000. The available evidence suggests that liabilities of approximately $700,000 were discharged at the time. Capital gains tax in the order of approximately $430,000 was also payable. The value of Alexicon by the time of trial may have been as low as $19,000, being the balance of Alexicon’s bank account. The primary judge noted that a more optimistic valuation, of approximately $180,000, was put forward but this assumed an adjustment in favour of Alexicon (and against Voula or VLN) in connection with the use of Alexicon funds in Voula’s defence of the proceedings brought by Arthur. His Honour concluded that he was not in a position to quantify the value of the testamentary entitlements of Costa and Jason. Although the primary judge did elsewhere make the observation that the putative interests of Costa and Jason in the shares of Alexicon were of “comparatively nominal value”, that appears to have been premised on an assumption that those assets would be burdened by the costs incurred by Costa and Jason in defending the proceedings brought by Arthur. As events have transpired, the Alexicon assets do not need to be burdened in this way because Costa and Jason have the benefit of an order that their costs are to be paid out of the estate or notional estate of Con, with the burden of that liability to be borne by Voula as residuary beneficiary. The value of the Alexicon shares has some potential relevance to the grounds of appeal, as explained further below.
As to the family provision claim, there was no dispute below that Arthur, as a child of the deceased, is an “eligible person” within the meaning of s 57 of the Succession Act. The primary judge correctly described the operation of ss 59 and 60 and observed that in considering an application for family provision and the operation of those provisions, the Court is involved in an “evaluative process of reasoning about the nature of any ‘moral duty’ owed by a deceased person to a claimant for a family provision order and an assessment of that person’s ‘need’, if any, for a grant of ‘family provision’”. The primary judge emphasised that Arthur bore the onus of persuading the Court that he was left without adequate provision for his proper maintenance, education or advancement in life, that the assessment of what is “adequate” and “proper” in a particular case depends on the circumstances of the case and that respect must be given to the testamentary intentions of the deceased.
In her appeal, Voula makes no complaint about these descriptions of the exercise required to be undertaken by the Court. Nor does Voula complain about the primary judge’s identification of the considerations, emerging from the list of permissible considerations in s 60(2) of the Succession Act, which were of particular relevance on the facts of this case.
Having set out those governing principles and relevant considerations, the primary judge proceeded to make a series of findings about the circumstances bearing on the claim for family provision. The following findings assume particular significance for the purposes of resolving the appeal:
during his formative years Arthur had a close and loving relationship with all other members of his family, including Con;
Con’s preferred succession plan, which was very important to him, was that Voula and Arthur, through VLN and Alexicon respectively, would each inherit an income-producing asset that would remain in the family;
that succession plan was reflected in the 2008 Will, which was made at a time when Arthur was in good standing with Con;
Arthur fell from favour with Con after 2008 when he became entrenched in controversial litigation, weighed down by litigation-related debt, bankrupt on his own petition and a supplicant for money. Con apprehended that if he gained control of one of the Jamisontown properties he would sell it and dissipate the proceeds;
at the same time as Con’s relationship with Arthur deteriorated, Con’s relationship with Voula became closer. Rightly or wrongly, Voula benefited personally from her close relationship with Con;
having lost faith in Arthur, Con substituted for the provision given to Arthur in the 2008 Will the provision he made for Arthur’s children, Costa and Jason, in the two wills made in 2013. Con had a strong conviction that Arthur should be disinherited in this way. This was demonstrated by the evidence of the solicitor responsible for drafting each of Con’s wills and from the fact that Con specifically refused Arthur’s request, after being discharged from bankruptcy, to restore the previous arrangement;
Arthur is fortunate in the sense that he has a family of his own, being Maria, Costa, Jason and Arthur’s two stepdaughters, to sustain him. But in the conduct of his financial affairs Arthur appears to have been the author of his own misfortune. Arthur’s conduct of the litigation with Voula had magnified the costs burden of all parties;
Arthur has no assets of any substance and (on Arthur’s evidence) few prospects of earning an income. He lives in a residence owned by his stepdaughters and is dependent upon their goodwill for accommodation. The primary judge expressed some caution in considering the evidence of Arthur’s financial position, finding that Arthur’s claims of impecuniosity “cannot entirely be taken at face value”. His Honour said more broadly that it was not possible to estimate with “anything other than a very broad brush” the present net worth of the parties “including, particularly” Arthur, Costa and Jason. Nevertheless, the primary judge proceeded to find that “[s]cepticism aside, the practical reality is that the plaintiff has negligible, if any, net worth, and, at the age of 62 years, no practical prospect of earning a substantial income in the future”;
Voula, as compared with Arthur, is “comparatively well off”. His Honour found further that “much of her wealth has been derived from assistance given to her by the deceased”. Voula was found to have equity in the Blakehurst Property in the order of $935,000-$1,285,000; and
the fact that Con had substituted a gift to Arthur’s sons for the gift formerly planned for Arthur demonstrated an appreciation by Con that Arthur “had a claim (albeit an attenuated claim) on his bounty and he had a moral obligation (albeit a reduced obligation) to consider [Arthur’s] personal circumstances at the time he made his will and looking forward”.
Having made those findings the primary judge concluded that Arthur had made out a case for a “modest provision” from the estate. This was said to be qualified by recognition of Con’s determination not to confer any benefit on Arthur directly. The appropriate order for provision was said to be $300,000, subject to an allowance in favour of Voula of $129,435.58, leaving a net provision of $170,564.42. The allowance, which was agreed between Arthur and Voula, arose from the pre-existing indebtedness of Arthur to Voula arising from costs orders made against Arthur at earlier stages of the proceedings before the primary judge and in bankruptcy proceedings.
This determination was made in circumstances where the primary judge had found, on the basis of agreement between the parties, that the estimated value of the net distributable estate was $922,664. That total estimate was premised on an agreement that the VLN Unit had an estimated value of $2,100,000.
These were the findings described in the reasons for judgment published by the primary judge on 24 October 2024 (October Reasons). His Honour did not make orders at the time of publishing those reasons, but instead set out the orders which he proposed to make, including as to costs. The parties were invited to make submissions as to the final orders that ought be made. The proposed regime as to costs was intended by the primary judge to “regulate the quantum of costs payable out of the estate and as between the lawyers and their respective clients”.
The issue of costs troubled the primary judge, who observed that the solicitor-client costs incurred by each party exceeded what would be expected in family provision claims of the kind ultimately pressed by Arthur. It is understandable that the primary judge was so troubled. As will be clear from what follows, the litigation in this matter has produced the extremely unsatisfactory result that the costs of litigation, despite being partially capped, have devoured all but a remnant of the deceased estate. That is before one brings to bear the costs of this appeal. The litigation itself has served to consume the assets accumulated over Con’s lifetime and to frustrate his testamentary wishes more effectively than any order for family provision.
After the publication of the October Reasons, Arthur, Costa and Jason became aware that Voula had caused the sale of the VLN Unit. This was done without notice to the other parties, Voula’s own lawyers in the proceedings or the Court. The property had sold for $2,620,000, and the proceeds of sale were applied by Voula to pay a capital gains tax liability of $702,542.62 and otherwise for her personal benefit. On 25 October 2024, Arthur obtained freezing orders and a discovery order against Voula arising from the sale of the VLN Unit. Voula subsequently filed an affidavit in which she explained what she had done with the proceeds of the sale. In addition to discharging the capital gains tax liability, Voula had applied the proceeds for various personal purposes, including $350,000 to reduce the mortgage debt on the Blakehurst Property, $40,000 to discharge a car loan and $330,871.34 to acquire a property in Melbourne.
The primary judge received further submissions from the parties about the consequences of these developments, and the final orders that ought be made. The parties agreed that the net distributable estate had increased to $1,259,035.07 (from $922,664). That adjustment occurred in circumstances where the VLN Unit had in fact sold for $520,000 more than the estimated value which had underpinned the calculation of net distributable estate previously submitted by the parties.
The primary judge gave further ex tempore reasons on 11 December 2024 which take the form of an addendum to the October Reasons. His Honour explained that with the benefit of further submissions (including oral submissions made on 11 December 2024) and evidence addressed to the new developments, as well as the orders previously foreshadowed by the Court, he had reconsidered what orders should be made in the disposition of the proceedings, and in the course of doing so had given fresh consideration to the judgments required of the Court under s 59 of the Succession Act.
The primary judge then announced the final orders disposing of the proceedings:
Order 6 provides for the immediate vesting of the two shares in Alexicon in Costa and Jason respectively. That served to bring forward the testamentary gift to Costa and Jason under the Final Will, by dispensing with the requirement that each must turn 23 before becoming entitled to that share. On their face, the final orders of the primary judge do not otherwise appear to deal with the assets of Alexicon or the value of the testamentary gift of the shares in Alexicon to Costa and Jason. As explained above, it is unclear what the value of those shares was as at 11 December 2024. That ambiguity has some impact on the assessment of the ultimate position of Voula, Arthur, Costa and Jason based on giving effect to the orders of the primary judge and the ultimate administration of the estate in accordance with those orders and the Final Will.
The position may be summarised as follows:
Arthur is entitled to a legacy distribution of $270,564.42, from the estate or notional estate of Con (order 1). The burden of that legacy is to be borne by Voula (order 5);
Arthur is entitled to be paid $300,000, in respect of his costs of the proceedings, from the estate or notional estate of Con (order 2). The burden of that costs liability is to be borne by Voula (order 5);
Costa and Jason are entitled to be paid $155,000, in respect of their costs of the proceedings, from the estate or notional estate of Con (order 4). The burden of that costs liability is to be borne by Voula (order 5);
although Voula is nominally entitled to be paid $272,000 for her costs of the proceedings, that amount is to be paid out of the notional estate of Con (ie the Blakehurst Property) (order 3). No allowance is made under the order for the application of Con’s estate to make that payment;
subject to the undertaking referred to in paragraph 8 being given by Costa and Jason, Voula is required to pay $150,000 to Costa and Jason out of the notional estate of Con (ie the Blakehurst Property). No allowance is made under the order for the application of Con’s estate to make that payment;
the shares in Alexicon vest immediately in Costa and Jason. For the reasons explained above, the value of those shares is unclear. It may be no more than $19,000, being the balance of Alexicon’s bank account; and
Voula is entitled to the testamentary gift of the shares in VLN. Previously, the value of those shares derived from the value of the VLN Unit. As explained above, that unit was sold. In light of the evidence as to the application of the proceeds of sale by Voula, it is unclear if VLN retains any substantial assets.
The ultimate financial position of Voula is complicated by the fact that the Blakehurst Property has been drawn into this exercise by its designation as part of the notional estate of Con, to the extent necessary to satisfy the Court’s orders. The parties in the appeal did not seek to put a figure on Voula’s net position, taking proper account of the change in treatment of the Blakehurst Property and the total burden of the liabilities imposed by the Court’s orders.
The amended version of ground 1 is more appropriately directed to the statutory exercise, and to the findings actually made by the primary judge. With ground 1 so reframed, there is in substance little difference between grounds 1, 2, 3 and 4. While the angle of approach differs slightly, each ground is ultimately an attack on the conclusion that it was appropriate to make provision for Arthur from the estate in the factual circumstances as found by the primary judge.
As to the respective financial positions of Arthur and Voula, the primary judge found that Voula had benefited personally from her close relationship with Con. She was found to be, as compared with Arthur, “comparatively well off” and much of her wealth was found to have been “derived from assistance given to her by the deceased”. That finding was evidently significant to the primary judge, including because it signalled that the discharge of Con’s moral obligations to Voula could not be measured solely by reference to benefits that would be distributed to her from Con’s deceased estate. By contrast to Voula, Arthur was found to have “negligible, if any, net worth, and, at the age of 62 years, no practical prospect of earning a substantial income in the future”. The last finding is of particular significance. Voula draws attention to other findings of the primary judge, including that there was a reasonable foundation for a view that Arthur had managed his affairs so as to appear without financial means or security and that the Court was unable to determine the present net worth of any of the parties (including Arthur) beyond a “very broad brush”. Plainly the process of ascertaining the true financial positions of both Arthur and Voula was not straightforward. However, notwithstanding those obstacles, his Honour did proceed to make the specific finding noted above as to Arthur’s negligible net worth and lack of prospects.
Voula’s ground 4 focuses on the respective ultimate outcomes for Voula and Arthur. The position advanced is that the benefit received by Voula out of Con’s estate was $261,470. From that premise, Voula argues that she will ultimately receive from Con’s estate less than the amount to be distributed to Arthur, being $270,564.42. It might also be said from that perspective that the primary judge erred in characterising the provision being ordered for Arthur as “modest”.
However, there are a number of difficulties with the calculations advanced by Voula in ground 4. The starting premise is that the amounts are to be paid from the “net agreed distributable estate” of $1,259,035. However, as explained above, not all of the amounts in question can, or necessarily will, be paid from Con’s estate. The payment of Voula’s costs must come from the notional estate. Other amounts may, according to the terms of the orders, come from either Con’s estate or the notional estate (noting that the Blakehurst Property is designated by order 10 as notional estate “to the extent required to pay the amounts payable [in orders 1 to 9]”). Voula did not, in her amended notice of appeal or in her submissions, grapple with the implications of this for her ultimate net position or the comparison between the distributions to be made from Con’s estate to Arthur and Voula respectively. This substantially undermines Voula’s argument that the outcome can be seen to be plainly unjust.
That also points to a broader problem. As explained above, the ultimate financial position of Voula has been obscured by the distribution of the proceeds of sale of the VLN Unit and the intermingling of Voula’s personal property and interest in the Blakehurst Property with assets that would otherwise have been available for distribution from Con’s estate. As the party seeking to persuade this Court that the outcome reached by the primary judge was plainly unjust and involved a miscarriage of the evaluative task and/or discretion, it was incumbent on Voula to engage with these issues and demonstrate the factual foundations for her submissions. Voula failed to do so in an effective way.
An additional problem with the presentation of ground 4 is that it incorporates a number of substantial distributions and payments in respect of costs. That is not inherently problematic when seeking to understand the substantive outcome for each party and the appropriateness of an order for family provision. As often occurs in matters of this kind, in considering the value of the estate and the respective financial positions of the affected parties, the primary judge took into account the costs that had been incurred and the burden of potential or actual costs orders. In ordinary circumstances, that can be a fraught exercise. Whether the adverse impact of legal costs or potential costs liabilities should be taken into account when assessing the respective positions of claimants and beneficiaries is ultimately a discretionary matter: Bassett v Bassett at [198]. However, the treatment of potential costs liabilities is complicated by the fact that ordinarily at the time of determining a family provision claim the trial Court will not know how costs will ultimately be dealt with. That can present material uncertainties when anticipating the likely outcome as to costs, particularly because it may be affected in significant ways by offers of compromise about which the Court will usually be ignorant at the time of making an order for family provision: see Bassett v Bassett at [120].
The present case is unusual in this respect. Because of the sequence of events involving the publication of the October Reasons and the receipt of further submissions and evidence, prior to determining the final orders the primary judge did become aware of significant offers of compromise that did affect the costs outcome. As a result, the costs awarded in favour of Arthur were apparently awarded “in large measure” on the indemnity basis. This has some significance when it comes to Voula’s complaint about the ultimate consequences for her and Arthur respectively of implementing the final orders. The outcome is in part a reflection of the costs consequences flowing from the conduct of the litigation by Voula and Arthur respectively. That presents a difficulty for Voula when presenting these calculations as a foundation for arguing that the primary judge’s evaluative judgment and/or discretion in respect of the core issue of family provision must have miscarried because the outcome was plainly unjust. Again, in advancing ground 4, it was incumbent on Voula to untangle these different threads. She failed to do so.
As was pointed out in the course of argument, the calculations also appeared to assume that Alexicon has no valuable assets in circumstances where that is not apparent from, and seemingly inconsistent with, the findings of the primary judge. In that respect the calculations advanced by Voula may be conservative, as senior counsel for Voula submitted, in the sense that they may overlook that an additional part of the value of the distributable estate will be flowing to Costa and Jason rather than Voula. Nevertheless, the failure to grapple with this issue was part of the broader failure to verify that the position described in ground 4 was an accurate summary of the respective positions of all parties.
Ultimately, ground 4 involved an overly simplistic and unpersuasive account of the final position determined by the primary judge and the consequences for the affected parties. Relevantly, it has not proved to be an effective way of demonstrating that that the result embodied in the final orders is, upon the facts found by the primary judge, unreasonable or plainly unjust.